Dying without a will is more common than you might think. When this happens, you don’t get to decide who receives your property, your savings, or your personal belongings. Instead, state law makes those decisions for you through a process called intestate succession.
Our friends at Cohen & Cohen, a personal injury lawyer, discuss this scenario regularly with families who want to avoid leaving these decisions to chance. An estate planning lawyer can help you understand how your state’s specific laws would handle your assets if you pass away without proper documentation in place.
Understanding Intestate Succession
Intestate succession is the legal framework that determines asset distribution when someone dies without a valid will. Each state has its own set of rules, and they don’t always align with what you might want for your family.
The probate court appoints an administrator to handle your estate. This person follows a priority list established by state law, typically starting with a surviving spouse, then adult children, parents, siblings, and more distant relatives. The administrator doesn’t have discretion to distribute assets based on your relationships or wishes. They simply follow the statutory formula.
How Assets Get Divided
The distribution formula varies significantly by state, but most follow similar patterns:
If you’re married with children:
- Your spouse typically receives between one-third and one-half of your estate
- Your children split the remaining portion equally
- Stepchildren usually receive nothing unless you legally adopted them
If you’re married without children:
- Your spouse might receive everything, or they might split the estate with your parents or siblings
- Some states give your entire estate to your spouse, while others divide it between your spouse and your parents
If you’re unmarried with children:
- Your children typically inherit everything in equal shares
- Minor children’s inheritances go into court-supervised accounts until they reach adulthood
If you have no spouse or children:
- Your parents inherit first
- If your parents are deceased, your siblings are next in line
- More distant relatives follow according to state law
The state itself becomes the beneficiary of your estate only if absolutely no relatives can be found.
What Doesn’t Pass Through Intestate Succession
Not all assets go through probate or follow intestate succession laws. Several types of property transfer automatically to designated beneficiaries:
- Retirement accounts with named beneficiaries
- Life insurance policies
- Payable-on-death bank accounts
- Transfer-on-death investment accounts
- Property held in joint tenancy with right of survivorship
- Assets in a living trust
These beneficiary designations override intestate succession laws, which is why keeping them current matters just as much as having a will.
Problems That Arise Without A Will
Intestate succession creates complications that go beyond simple asset distribution. The process often becomes expensive and time-consuming for your family.
Your loved ones face a longer probate process. Courts need additional time to establish who should serve as administrator and verify all potential heirs. This extends the timeline before anyone receives their inheritance, sometimes by many months.
Family disputes become more likely. When the law makes decisions instead of you, relatives who expected certain items or amounts may feel slighted. Disagreements over who should serve as administrator can further delay the process and create lasting rifts.
Minor children need court-appointed guardians. Without a will designating who should care for your children, a judge makes this decision. The person selected might not align with your preferences, and the court process adds stress during an already difficult time.
Your partner might receive nothing. If you’re in a long-term relationship but not married, intestate succession laws provide no protection for your partner. The same applies to close friends or charities you might have wanted to support.
State-Specific Variations Matter
Intestate succession laws differ dramatically across state lines. Community property states like California, Texas, and Arizona handle marital assets differently than common law states. Some states provide more generous spousal shares, while others spread assets more broadly among family members.
The National Conference of State Legislatures maintains resources on estate planning laws, though consulting with a local attorney provides the most accurate information for your situation.
Taking Control Of Your Estate
Creating a will puts you in control. You decide who inherits your property, who manages your estate, and who cares for your minor children. You can leave specific items to specific people and provide for anyone you choose, regardless of legal relationships.
A comprehensive estate plan often includes more than just a will. Powers of attorney, healthcare directives, and trusts work together to protect your interests during life and after death.
We understand that thinking about mortality feels uncomfortable. But taking action now prevents confusion and conflict later. Your family deserves clarity during a difficult time, and a proper estate plan provides exactly that. Start the conversation with someone who can guide you through your options and help you create documents that reflect your wishes.